COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

IN RE: THERESA CABALLERO,

 Relator.

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No. 08-13-00069-CV

AN ORIGINAL PROCEEDING

IN MANDAMUS

O P I N I O N

Theresa Caballero, Relator, has filed a petition for writ of mandamus against the

Honorable George D. Gilles, seeking relief from two orders entered by him in a disciplinary 

action instituted against her by the Commission for Lawyer Discipline.1 In a case of first 

impression, we must decide whether a district judge has the discretion to reject a Rule 11 

settlement agreement entered into between an attorney and the Commission. This issue is 

decided by a divided panel. While we disagree about the resolution, none of us should be heard 

as condoning the conduct alleged. 

FACTUAL AND PROCEDURAL SUMMARY

During the trial of a criminal case in 2011, the Honorable Steve Smith found Caballero in 

contempt of court and filed a misconduct complaint against her with the Commission for Lawyer 

 

1

 Judge Gilles is the Judge of the 142nd District Court in Midland County, Texas. The Texas Supreme Court 

appointed Judge Gilles to preside in the disciplinary action filed in the 448th District Court, El Paso County, Texas. 

See TEX.RULES DISCIPLINARY P. 3.02, 3.03, reprinted in TEX.GOV’T CODE ANN., tit. 2, subtit. G, app. A-1 (West 

2013). 
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Discipline.

2

 The Commission filed a disciplinary petition against Caballero alleging that she 

committed professional misconduct in violation of Texas Disciplinary Rules of Professional 

Conduct 3.02, 3.04(a), 3.04(c)(5), 3.04(d), 8.04(a)(1), 8.04(a)(3), and 8.04(a)(4). This

disciplinary action3is based exclusively on the allegations of misconduct arising out of the 

criminal trial and made by Judge Smith. On August 20, 2012, the Honorable Juanita VasquezGardner, who was assigned to hear the de novo contempt proceeding, found Caballero in 

contempt of court and assessed punishment at a fine of $100 for each violation for a total of 

$900, but the court probated the entire fine.

4

 

On August 28, 2012, the Commission filed a motion for partial summary judgment based 

on the contempt judgment. It alleged that Caballero was collaterally estopped from relitigating 

the issues decided in the contempt proceeding. The Commission specifically sought partial 

summary judgment on the ground that Caballero’s contemptuous acts constituted professional 

misconduct in violation of Rule 3.04(c)(5) which prohibits conduct intended to disrupt 

proceedings before a tribunal and Rule 8.04(a)(4) which prohibits conduct constituting 

obstruction of justice. The Commission did not move for summary judgment on any of the 

 

2

 The defendant in the criminal case obtained an order expunging the records related to that case. Accordingly, the 

opinion will not include the defendant’s name, the cause number, or any of the facts related to that case. See

TEX.CODE CRIM.PROC.ANN. art. 55.03 (West 2006)(prohibiting the release, maintenance, dissemination, or use of 

the expunged records and files for any purpose).

3

 The Texas Rules of Disciplinary Procedure distinguishes between a “Disciplinary Action” and a “Disciplinary 

Proceeding.” A “Disciplinary Action” means a proceeding brought by or against an attorney in a district court or 

any judicial proceeding covered by the rules other than an evidentiary hearing. TEX. RULES DISCIPLINARY P.

1.06(J), reprinted in TEX.GOV’T CODE ANN., tit. 2, subtit. G, app. A-1 (West 2013). “Disciplinary Proceedings” 

include the processing of a grievance, the investigation and processing of an inquiry or complaint, presentation of a 

complaint before a summary disposition panel, and the proceeding before an evidentiary panel. TEX. RULES 

DISCIPLINARY P. 1.05(L). The opinion will refer to the procedure in this case as a disciplinary action in accordance 

with Rule 1.06(J).

4

 See TEX.GOV’T CODE ANN. § 21.002 (d)(West 2004)(providing that an officer of a court who is held in contempt 

by a trial court shall, on proper motion filed in the offended court, be released on her own personal recognizance 

pending a determination of her guilt or innocence; the presiding judge of the administrative judicial region in which 

the alleged contempt occurred shall assign a judge who is subject to assignment by the presiding judge other than the 

judge of the offended court to determine the guilt or innocence of the officer of the court).
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remaining allegations. Judge Gilles conducted a hearing on the motion on October 19, 2012, but 

he did not immediately rule. In late October or early November, the Commission and Caballero 

engaged in settlement negotiations and entered into an agreed judgment (1) finding that 

Caballero had engaged in professional misconduct in violation of Rule 3.04(c)(5); and (2) 

suspending her from the practice of law for nine months, but fully probating the suspension. The 

agreed judgment recited that the probated suspension would begin on December 1, 2012 and end 

on August 31, 2013. Caballero and her attorney signed the judgment as did the Commission. 

On November 9, 2012, Judge Gilles notified the parties that he would grant the motion 

for partial summary judgment. The judge did not include a signed order with the letter because 

he believed that any order had to be signed in El Paso County.5 Ten days later, Judge Gilles sent 

a letter to Caballero and the Commission stating that he had received the agreed judgment 

reflecting the “contemplated settlement,” but he would not accept the settlement proposed by 

counsel. Judge Gilles did not provide a reason for rejecting the settlement agreement. The letter 

also informed the parties that the jury trial would begin on November 27, 2012. On 

November 20, 2012, the Commission sent a letter to Judge Gilles inquiring about the entry of the 

order granting partial summary judgment since an order had not yet been signed. The letter also 

informed him that the Commission did not intend to proceed to trial on the remaining allegations 

of professional misconduct, and consequently, jurors would not be necessary because the sole 

issue would be the appropriate sanction for the established misconduct. That same day, 

Caballero filed a motion to recuse Judge Gilles based on his refusal to enter the agreed judgment 

in accordance with the settlement agreement. The judge assigned to hear the motion to recuse 

 

5

 The Commission noted in a subsequent letter to the trial court that the geographical constraints imposed by Article 

V, Section 7 of the Texas Constitution and Section 74.094(e) of the Texas Government Code do not apply in a 

disciplinary action. See Acevedo v. Commission for Lawyer Discipline, 131 S.W.3d 99, 102-04 (Tex.App.--

San Antonio 2004, pet. denied).
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denied it on December 21, 2012. Judge Gilles granted the Commission’s motion for partial 

summary judgment on February 13, 2013 finding that Caballero engaged in acts of professional 

misconduct in violation of Rules 3.04(c)(5) and 8.04(a)(4). Shortly thereafter, Caballero filed a 

mandamus petition in this court challenging the trial court’s refusal to enter judgment in 

accordance with the parties’ agreement.

THE RULES OF DISCIPLINARY PROCEDURE

We begin with an overview of the disciplinary structure. The rules are divided into 

fifteen parts and the titles are telling. Part I addresses “General Rules.” Section 1.03 informs us 

that:

These rules are to be broadly construed to ensure the operation, effectiveness, 

integrity, and continuation of the professional disciplinary and disability system.

Part II creates the district grievance committees and provides for its governance. Herein we find 

the rule creating the election available to a respondent attorney. 

2.15. Election

A Respondent given written notice of the allegations and rule violations 

complained of, in accordance with Rule 2.14, shall notify the Chief Disciplinary 

Counsel whether the Respondent seeks to have the Complaint heard in a district 

court of proper venue, with or without a jury, or by an Evidentiary Panel of the 

Committee. . . .

The rules that follow describe the procedure for Evidentiary Panel hearings. There is no 

incorporation of the Texas Rules of Civil Procedure. Discovery is limited. The Evidentiary 

Panel may order the Commission and the respondent to participate in mandatory alternative 

dispute resolution as provided by Chapter 154 of the Civil Practice and Remedies Code or as 

otherwise provided by law when deemed appropriate. With regard to evidence, the panel chair 

shall admit all such probative and relevant evidence deemed necessary for a fair and complete 

hearing, “generally in accord with the Texas Rules of Evidence; provided, however, that 
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admission or exclusion of evidence shall be in the discretion of the Evidentiary Panel chair. . . .” 

Rule 2.17(E), (K) and (L). Rule 2.18 relates to the imposition of sanctions:

2.18. Imposition of Sanctions

The Evidentiary Panel may, in its discretion, conduct a separate hearing and 

receive evidence as to the appropriate Sanctions to be imposed. Indefinite 

Disability sanction is not an available Sanction in a hearing before an Evidentiary 

Panel. In determining the appropriate Sanctions, the Evidentiary Panel shall 

consider:

A. The nature and degree of the Professional Misconduct for which the 

Respondent is being sanctioned;

B. The seriousness of and circumstances surrounding the Professional 

Misconduct;

C. The loss or damage to clients;

D. The damage to the profession;

E. The assurance that those who seek legal services in the future will be 

insulated from the type of Professional Misconduct found;

F. The profit to the attorney;

G. The avoidance of repetition;

H. The deterrent effect on others;

I. The maintenance of respect for the legal profession;

J. The conduct of the Respondent during the course of the Disciplinary 

Proceeding;

In addition, the Respondent’s disciplinary record, including any private 

reprimands, is admissible on the appropriate Sanction to be imposed. 

Respondent’s Disability may not be considered in mitigation, unless Respondent 

demonstrates that he or she is successfully pursuing in good faith a program of 

recovery or appropriate course of treatment.

Part III is entitled “Trial in District Court.” These rules address the assignment of a judge; filing, 

service and venue; answer of the respondent; and discovery. Rule 3.06 provides for trial by jury:

3.06. Trial by Jury

In a Disciplinary Action, either the Respondent or the Commission shall have the 

right to a jury trial upon timely payment of the required fee and compliance with 

the provisions of Rule 216, Texas Rules of Civil Procedure. The Complainant has 

no right to demand a jury trial.
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Rule 3.08 sets out the applicable rules for a trial in district court. Here, the Texas Rules of Civil 

Procedure do apply:

3.08. Additional Rules of Procedure in the Trial of Disciplinary Actions

In all Disciplinary Actions brought under this part, the following additional rules 

apply:

A. Disciplinary Actions are civil in nature.

B. Except as varied by these rules, the Texas Rules of Civil Procedure 

apply.

*****

G. It shall be the policy of the Commission to participate in alternative 

dispute resolution procedures where feasible; provided, however, that 

Disciplinary Actions shall be exempt from any requirements of 

mandatory alternative dispute resolution procedures as provided by 

Chapter 154 of the Civil Practice and Remedies Code or as otherwise 

provided by law. [Emphasis added].

Rules 3.09 and 3.10 explain the bifurcated trial procedure. 

3.09. Judgment

If the trial court fails to find from the evidence in a case tried without a jury, or 

from the verdict in a jury trial, that the Respondent’s conduct constitutes 

Professional Misconduct, the court shall render judgment accordingly. If the 

court finds that the Respondent’s conduct does constitute Professional 

Misconduct, the court shall determine the appropriate Sanction or Sanctions to be 

imposed. . . . The trial court shall promptly enter judgment after the close of 

evidence (in the case of a nonjury trial) or after the return of the jury’s verdict. . . .

3.10. Imposition of Sanctions

The trial court may, in its discretion, conduct a separate hearing and receive 

evidence as to the appropriate Sanctions to be imposed. Private reprimand is not 

an available Sanction. Indefinite Disability suspension is not an available 

Sanction. In determining the appropriate Sanctions, the court shall consider:

A. The nature and degree of the Professional Misconduct for which the 

Respondent is being sanctioned;

B. The seriousness of and circumstances surrounding the Professional 

Misconduct;

C. The loss or damage to clients;
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D. The damage to the profession;

E. The assurance that those who seek legal services in the future will be 

insulated from the type of Professional Misconduct found;

F. The profit to the attorney;

G. The avoidance of repetition;

H. The deterrent effect on others;

I. The maintenance of respect for the legal profession;

J. The conduct of the Respondent during the course of the Committee 

action;

K. The trial of the case; and

L. Other relevant evidence concerning the Respondent’s personal and 

professional background.

In addition, the Respondent’s disciplinary record, including any private 

reprimands, is admissible on the appropriate Sanction to be imposed. 

Respondent’s Disability may not be considered in mitigation, unless Respondent 

demonstrates that he or she is successfully pursuing in good faith a program of 

recovery or appropriate course of treatment.

What is unmistakenly clear, and highly significant, is that when a respondent attorney elects a 

jury trial, the jury may only render a verdict on whether the attorney has committed acts of 

misconduct. The jury is not permitted to determine sanctions. Therein lies the dispute between 

the majority opinion and the dissent. We conclude that the language requiring the judge to 

determine sanctions and enter judgment relates to the procedure for trial on the merits and does 

not relate to settlement agreements. Following a bench trial, the judge shall determine sanctions 

and enter judgment at the conclusion of the evidence. In a jury trial, upon return of the verdict 

the trial court shall determine sanctions and enter judgment. These procedural specifications 

neither contemplate nor define the discretion of the trial court to reject a Rule 11 agreement. But 

as part of the Texas Rules of Civil Procedure, Rule 11 is indeed implicated.

REFUSAL TO ENFORCE RULE 11 AGREED JUDGMENT

In three related issues, Caballero contends that trial court clearly abused its discretion by 

refusing to enter the Rule 11 agreed judgment to settle the disciplinary case and by proceeding to 

rule on the Commission’s motion for partial summary judgment. To be entitled to mandamus 
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relief, a relator must meet two requirements. First, the relator must show that the trial court 

clearly abused its discretion. In re Prudential Insurance Company of America, 148 S.W.3d 124, 

135 (Tex. 2004). Second, the relator must demonstrate it has no adequate remedy by appeal. Id. 

at 136.

The Disciplinary Process

Under Article II, Section 1 of the Texas Constitution and Section 81.011(c) of the State 

Bar Act, the Texas Supreme Court has the power to regulate the practice of law in the State of 

Texas. In re State Bar of Texas, 113 S.W.3d 730, 732 (Tex. 2003). The Court has the 

constitutional and statutory responsibility within the state of Texas for the lawyer discipline and 

disability system, and it has inherent power to maintain appropriate standards of professional 

conduct and to dispose of individual cases of lawyer discipline and disability. TEX.RULES

DISCIPLINARY P. Preamble, reprinted in TEX.GOV’T CODE ANN., tit. 2, subtit. G, app. A-1 (West 

2013). The Supreme Court has delegated the responsibility for administering and supervising 

lawyer discipline and disability to the Board of Directors of the State Bar of Texas. Id. The 

Board is vested with authority to adopt rules of procedure and administration consistent with the 

Texas Rules of Disciplinary Procedure. Id. The Commission for Lawyer Discipline is a 

permanent committee of the State Bar of Texas. TEX.GOV’T CODE ANN. § 81.076(b)(West 

2013); TEX.RULES DISCIPLINARY P. 1.06(D). Each attorney admitted to practice in Texas and 

each attorney specially admitted by a court of this state for a particular proceeding (pro hoc vice)

is subject to the disciplinary and disability jurisdiction of the Supreme Court and the 

Commission for Lawyer Discipline. TEX.GOV’T CODE ANN. § 81.071. Likewise, each attorney 

is subject to the Texas Rules of Disciplinary Procedure and the Texas Disciplinary Rules of 

Professional Conduct. TEX.GOV’T CODE ANN. § 81.072(d). 
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When a respondent attorney elects to have a complaint heard in a district court of proper 

venue, the Commission’s chief disciplinary counsel is required to notify the Supreme Court of 

the election by transmitting a copy of the disciplinary petition to the Supreme Court. TEX.RULES

DISCIPLINARY P. 3.01. Thus, the Supreme Court has original jurisdiction of the disciplinary 

action. See Acevedo, 131 S.W.3d at 103-04 (stating that the Supreme Court has original 

jurisdiction of the disciplinary petition). The Supreme Court then appoints an active district 

judge who does not live within the administrative judicial district in which the respondent resides 

to preside in the case, and a copy of the appointment order is transmitted to the chief disciplinary 

counsel. TEX.RULES DISCIPLINARY P. 3.02. After the trial judge has been appointed, the chief 

disciplinary counsel must promptly file the disciplinary petition with the district clerk of the 

county of alleged venue. TEX.RULES DISCIPLINARY P. 3.03. Disciplinary actions are civil in 

nature and the Texas Rules of Civil Procedure apply unless the Rules of Disciplinary Procedure 

require a different procedure. TEX.RULES DISCIPLINARY P. 3.08(A), (B). 

No Adequate Remedy?

We consider first whether Caballero has an adequate remedy by appeal. It is undisputed 

that Caballero will be able to appeal the final judgment of the trial court. TEX.RULES

DISCIPLINARY P. 3.16 (providing that a final judgment of the district court may be appealed as in 

civil cases generally). But that does not mean that the ability to appeal is an adequate remedy. 

The Supreme Court has recognized that the operative word, “adequate,” has no comprehensive 

definition. Prudential, 148 S.W.3d at 136. The term demands a careful balance of 

jurisprudential considerations that determine when appellate courts will use original mandamus 

proceedings to review the actions of lower courts. Id. These considerations implicate both 

public and private interests. Id. Mandamus relief will not be granted when the law provides 
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another plain, adequate, and complete remedy. In re Texas Dept. of Family and Protective 

Services, 210 S.W.3d 609, 613 (Tex. 2006); In re Prudential, 148 S.W.3d at 136. 

While a final judgment of the district court in a disciplinary action is appealable pursuant 

to Rule 3.16, Caballero is not permitted to supersede that judgment if the court disbars her. 

TEX.RULES DISCIPLINARY P. 3.14 (providing that a district court judgment of disbarment cannot 

be superseded or stayed). The judgment can only be stayed in the event of a judgment of 

suspension, and even then, only if the respondent attorney petitions the court and carries the 

burden of proving that the respondent’s continued practice of law does not pose a continuing 

threat to the welfare of the respondent’s clients or the public. Id. If the trial court disbars 

Caballero or suspends her license to practice law and refuses to stay the judgment during the 

pendency of an appeal, Caballero will be harmed even if it is subsequently determined that the 

trial court abused its discretion by refusing to enter the agreed judgment in accordance with the 

parties’ settlement of the disciplinary action. We conclude that the remedy offered by direct 

appeal is inadequate and incomplete. 

Clear Abuse of Discretion?

A trial court clearly abuses its discretion if it reaches a decision so arbitrary and 

unreasonable as to amount to a clear and prejudicial error. Walker v. Packer, 827 S.W.2d 833, 

839 (Tex. 1992). With respect to resolution of factual issues or matters committed to the trial 

court’s discretion, the reviewing court may not substitute its judgment for that of the trial court. 

Id. at 839-40. The relator must establish that the trial court could reasonably have reached only 

one decision. Id. at 840. Review of a trial court’s determination of the legal principles 

controlling its ruling is much less deferential. Id. A trial court has no discretion in determining 

what the law is or applying the law to the facts even when the law is unsettled. In re Prudential, 
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148 S.W.3d at 135. Consequently, a clear failure by the trial court to analyze or apply the law 

correctly will constitute an abuse of discretion. Walker, 827 S.W.2d at 840. The question is not 

whether Judge Gilles abused his discretion. In this context, the specific question is whether the 

rules accorded Judge Gilles any discretion to reject the agreement. 

The parties raise a number of arguments and counter-arguments, but we believe there are 

four primary issues presented by the mandamus petition: (1) whether the agreed judgment 

signed by the parties is a valid Rule 11 agreement; (2) whether the Commission validly withdrew 

its consent to the Rule 11 agreement; (3) whether performance of the agreement is impossible 

due to the passage of time and change in circumstances; and (4) whether the trial court had 

discretion to reject or disapprove the Rule 11 agreed judgment because this is a disciplinary 

proceeding. A Rule 11 agreement must be in writing and signed and filed with the court unless it 

is made in open court. See TEX.R.CIV.P. 11. The filing requirement creates the imprimatur of a 

court record. ExxonMobil Corporation v. Valence Operating Company, 174 S.W.3d 303, 309

(Tex.App.--Houston [1st Dist.] 2005, pet. denied). A settlement agreement must comply with 

Rule 11 to be enforceable. Padilla v. LaFrance, 907 S.W.2d 454, 460 (Tex. 1995); Broderick v. 

Kaye Bassman International Corp., 333 S.W.3d 895, 904-05 (Tex.App.--Dallas 2011, no pet.). 

A trial court has a ministerial duty to enforce a valid Rule 11 agreement. Fortis Benefits v. 

Cantu, 234 S.W.3d 642, 651 (Tex. 2007); EZ Pawn Corp. v. Mancias, 934 S.W.2d 87, 91 (Tex. 

1996); In re Guardianship of White, 329 S.W.3d 591, 592 (Tex.App.--El Paso 2010, no pet.). 

Was the Agreed Judgment a Valid Rule 11 Agreement?

It is undisputed that the agreed judgment is in writing and signed by both the 

Commission and Caballero. The Commission argues, however, that the agreed judgment signed 

by the parties was not filed with the El Paso County District Clerk until November 21, 2012. 
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While Rule 11 requires the writing to be filed in the court record, it does not say when it must be 

filed. Padilla, 907 S.W.2d at 461. The purpose of the filing requirement is to put the agreement 

before the court. Id. The trial court faxed a letter to the parties on November 19, 2012 which 

stated in part that: “The Court has received the proposed judgment reflecting the contemplated 

settlement in the above-styled and numbered cause. The Court will not accept the settlement 

proposed by counsel.” The only reasonable conclusion that can be drawn from the letter is that 

the agreed judgment signed by the parties was put before the court and presented for his

signature. There is no evidence that the Commission withdrew its consent to the Rule 11

agreement on or before November 19, 2012. In fact, the Commission sent a letter dated 

December 11, 2012 to the judge hearing the motion to recuse, and stated that it “does not dispute 

an agreement between the parties as to a sanction to be imposed, but is unconvinced that 

agreement is absolutely binding on Judge Gilles.” Therefore, at the time the trial court refused to 

sign the agreed judgment, it was a valid Rule 11 agreement.

Did the Commission Withdraw its Consent to the Rule 11 Agreement?

The Commission asserts in its response and supplemental response that it no longer 

consents to the Rule 11 agreement. A party has the right to revoke its consent to a Rule 11

agreement at any time before the rendition of judgment. Quintero v. Jim Walter Homes, Inc., 

654 S.W.2d 442, 444 (Tex. 1983). Withdrawal of consent must be effectively communicated to 

the trial court. Baylor College of Medicine v. Camberg, 247 S.W.3d 342, 346-47 (Tex.App.--

Houston [14th Dist.] 2008, pet. denied); First Heights Bank, FSB v. Marom, 934 S.W.2d 843, 

845 (Tex.App.-Houston [14th Dist.] 1996, no writ). Ordinarily, when one party withdraws 

consent to a Rule 11 agreement, another party can still seek to enforce it as a contract through an 

amended pleading or a counterclaim. Ford Motor Company v. Castillo, 279 S.W.3d 656, 663 
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(Tex. 2009); Padilla, 907 S.W.2d at 461; see Kanan v. Plantation Homeowner’s Association

Inc., 407 S.W.3d 320, 334 (Tex.App.--Corpus Christi 2013, no pet.h.)(Where consent to a 

Rule 11 agreement has been withdrawn, a court may enforce it through a separate breach of 

contract claim). Generally, these rules are applied in cases where the trial court rendered 

judgment pursuant to a Rule 11 agreement and one party is claiming that it withdrew its consent 

to the agreement, but we believe they must be applied in this case where the partial summary 

judgment granted by the trial court is contrary to the Rule 11 agreement.

There is no evidence in the mandamus record that the Commission ever took any steps in 

the trial court to withdraw its consent to the Rule 11 agreed judgment before the trial court 

granted the Commission’s motion for partial summary judgment on February 13, 2013. The 

Commission asserted in its initial mandamus response that Caballero had requested that the 

agreed judgment be entered in accordance with the parties’ agreement, but the Commission

“cannot agree to the entry of an agreed judgment under such circumstances” because the 

beginning date of the probated suspension had already passed. In its supplemental response filed 

on May 24, 2013, the Commission stated it no longer consents to the agreed judgment because 

the circumstances have changed since the parties entered into the agreement.6 More specifically, 

the Commission asserts that it does not agree to the amount of attorney’s fees Caballero is 

ordered to pay because it has had to expend additional resources defending against the motion to 

recuse Judge Gilles and against this mandamus proceeding. The Commission faults Caballero, 

but it is readily apparent that it would have been unnecessary for Caballero to file the motion to 

recuse or the mandamus petition had the trial court performed its ministerial duty to sign the 

agreed judgment when asked to do so by the parties.

 

6 This case was originally set for submission on June 6, 2013, but the court vacated the setting. The supplemental 

response was filed less than two weeks before that date. 
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We have found no cases holding that withdrawal of consent to a Rule 11 agreement can 

be effectively done for the first time in a mandamus proceeding. Significantly, the Commission 

did not withdraw its consent until after the trial court had granted partial summary judgment 

contrary to the Rule 11 agreement. The only issue remaining to be determined by the trial court

is determination of the sanction. The Commission’s withdrawal of consent at this late hour and 

in this forum prejudices Caballero because the trial court has already rendered judgment in a 

manner contrary to the Rule 11 agreement. Caballero cannot seek to enforce the Rule 11

agreement through an amended pleading or counterclaim asserting a breach of contract claim. 

We conclude that the Commission’s withdrawal of consent came too late because it occurred 

after the trial court had already rendered judgment contrary to the Rule 11 agreement.

Is Performance of the Agreement Impossible?

In its response and supplemental response, the Commission maintains that the Rule 11

agreement cannot be enforced because the date on which the probated suspension was to start 

has long since passed. The Commission relies on the rule that a judgment rendered on a Rule 11

settlement agreement must be “in strict or literal compliance” with the terms recited into the 

record and cannot remove or add material terms. See Chisholm v. Chisholm, 209 S.W.3d 96, 98 

(Tex. 2006). It argues, in effect, that the starting and ending dates of the probated suspension are

material terms of the agreement. 

Rule 11 agreements are contracts relating to litigation and are subject to general rules of 

contract construction. Trudy’s Texas Star, Inc. v. City of Austin, 307 S.W.3d 894, 914 

(Tex.App.--Austin 2010, no pet.). Our primary objective in construing a written contract is to 

ascertain and give effect to the intentions the parties have objectively manifested in the written 

instrument. Trudy’s Texas Star, 307 S.W.3d at 914, citing Frost National Bank v. L & F 
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Distributors, Ltd., 165 S.W.3d 310, 311-12 (Tex. 2005). Contract terms are given their plain, 

ordinary, and generally accepted meanings, and contracts are to be construed as a whole in an 

effort to harmonize and give effect to all provisions of the contract. Trudy’s Texas Star, 307 

S.W.3d at 914, citing Valence Operating Company v. Dorsett, 164 S.W.3d 656, 663 (Tex. 2005). 

If a contract can be given a certain or definite legal meaning or interpretation, it is not ambiguous 

and is construed as a matter of law. Trudy’s Texas Star, 307 S.W.3d at 914, citing Coker v. 

Coker, 650 S.W.2d 391, 393 (Tex. 1983). 

Generally, time of performance is not a material term of an agreement. Deep Nines, Inc. 

v. McAfee, Inc., 246 S.W.3d 842, 846 (Tex.App.--Dallas 2008, no pet.); Shaw v. Kennedy, Ltd., 

879 S.W.2d 240, 246 (Tex.App.--Amarillo 1994, no writ). The fact that a contract states a date 

for performance does not, in itself, mean that time is of the essence. Breof BNK Texas, L.P. v. 

D.H. Hill Advisors, Inc., 370 S.W.3d 58, 64 (Tex.App.--Houston [14th Dist.] 2012, no pet.);

Shaw, 879 S.W.2d at 246. For timely performance to be a material term, the contract must 

expressly provide that time is of the essence or there must be something in the nature of the 

subject matter or connected with the purpose of the contract and the circumstances surrounding it 

which makes it apparent that the parties intended that the contract be performed at or within the 

time specified. Deep Nines, 246 S.W.3d at 846.

The Rule 11 agreement provided that the nine-month period of probated suspension 

would begin on December 1, 2012 and conclude on August 31, 2013 but it does not clearly 

manifest that the parties intended for time to be of the essence. Further, we do not perceive 

anything in the nature of a disciplinary hearing or the circumstances surrounding the Rule 11

agreement to make it apparent that the parties intended for time to be of the essence. The 

material terms of the Rule 11 agreement are that Caballero’s license to practice law would be 
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suspended for nine months, the suspension would be fully probated, and she would pay the 

Commission $1,000 as attorney’s fees. 

Did the Trial Court Have Discretion to Approve or Reject the Rule 11 Agreement?

The Commission cites State Bar of Texas v. Kilpatrick, 874 S.W.2d 656, 659 (Tex. 1994)

as authority for its position that the trial court has broad discretion to determine the appropriate 

sanction for professional misconduct. Kilpatrick certainly states that the trial court has broad 

discretion to determine whether an attorney guilty of professional misconduct should be 

reprimanded, suspended, or disbarred. Id. But it did not involve a situation where the trial court 

rejected a Rule 11 settlement agreement so we do not read it to stand for the proposition that a 

trial court has authority or discretion to reject such an agreement between the parties. 

Texas law strongly favors and encourages voluntary settlement and orderly dispute 

resolution. Wright v. Sydow, 173 S.W.3d 534, 551 (Tex.App.--Houston [14th Dist.] 2004, pet. 

denied), citing Schlumberger Technology Corporation v. Swanson, 959 S.W.2d 171, 178 (Tex. 

1997). In Hernandez v. Telles, this court noted that “[t]he law has always favored the resolution 

of controversies through compromise and settlement rather than through litigation and it has 

always been the policy of the law to uphold and enforce such contracts if they are fairly made 

and are not in contravention of some law or public policy.” Hernandez v. Telles, 663 S.W.2d 91, 

93 (Tex.App.--El Paso 1983, no writ). This strong public policy in favor of voluntary 

settlements is reflected in Section 154.002 of the Civil Practice and Remedies Code:

It is the policy of this state to encourage the peaceable resolution of disputes, with 

special consideration given to disputes involving the parent-child relationship, 

including the mediation of issues involving conservatorship, possession, and 

support of children, and the early settlement of pending litigation through 

voluntary settlement procedures.
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TEX.CIV.PRAC.&REM.CODE ANN. § 154.002 (West 2011). Further, it is the responsibility of all 

trial and appellate courts and their court administrators to carry out the policy under Section 

154.002. TEX.CIV.PRAC.&REM.CODE ANN. § 154.003. 

The Rules of Disciplinary Procedure address the policy embodied in Chapter 154 in two 

instances. First, in a case where the respondent attorney has elected to have the complaint heard 

by an Evidentiary Panel, Rule 2.17(K) provides that the panel chair, upon motion or otherwise, 

may order the Commission and the respondent attorney to participate in mandatory alternative 

dispute resolution as provided by Chapter 154. TEX.RULES DISCIPLINARY P. 2.17(K).7 Second, 

in a case where the respondent attorney has elected to have the complaint heard in the district 

court, Rule 3.08(G) states that it is the policy of the Commission to participate in alternative 

dispute resolution procedures where feasible, but disciplinary actions are exempt from any 

requirement of mandatory alternative dispute resolution procedures under Chapter 154 of the 

Civil Practice and Remedies Code or as otherwise provided by law. TEX.RULES DISCIPLINARY P.

3.08(G).8 

We have found no cases holding that a trial court has discretion in every civil case to 

approve or reject a settlement agreement entered into by the parties. There are a few instances 

where approval of a settlement agreement is required. Approval of settlement agreements 

entered into by the guardian to settle a personal injury suit is required in the guardianship 

context. See In re Guardianship of DeLuna, 286 S.W.3d 379, 384-86 (Tex.App.--Corpus 

Christi-Edinburg 2008, orig. proceeding). The Texas Rules of Civil Procedure require trial court 

 

7

 The respondent attorney is required to make an election whether he or she seeks to have a complaint heard in 

district court or by an evidentiary panel of the grievance committee. TEX. RULES DISCIPLINARY P. § 2.15.

8

 In an evidentiary hearing under Rule 2.17, the chair of the Evidentiary Panel, upon motion made or otherwise, 

may order the Commission and the respondent attorney to participate in mandatory alternative dispute resolution 

under Chapter 154 or as otherwise provided by law when deemed appropriate. TEX. RULES DISCIPLINARY P. §

2.17(K).
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approval of a settlement or compromise agreement in a class action. TEX.R.CIV.P. 42(e)(1)(a) 

(providing that “[t]he court must approve any settlement, dismissal, or compromise of the claims, 

issues, or defenses of a certified class.”). Under Federal Rule of Civil Procedure 23.1(c), a 

shareholder derivative action may be settled, voluntarily dismissed, or compromised only with 

the court’s approval. FED.R.CIV.P. 23.1(c). The Federal Rules of Bankruptcy Procedure 

authorize the bankruptcy court, upon motion of the trustee, to approve a settlement or 

compromise of a debtor’s claim. FED.R.BANK.P. 9019(a).

Some states and the District of Columbia require judicial approval of the settlement of 

attorney discipline matters. See e.g., Kentucky Bar Association v. Robinson, 386 S.W.3d 739, 

743-44 (Ky. 2012)(discussing Kentucky’s Supreme Court Rule 3.480(2) which permits the 

Supreme Court to consider negotiated sanctions and provides specific procedures for the 

attorney, bar counsel, and the trial commissioner to follow; the Supreme Court may approve the 

negotiated sanction or remand the case for hearing or other proceedings); In re Fling, 44 A.3d 

957, 957-58 (Ct.App. D.C. 2012)(approving a petition for negotiated attorney discipline made 

pursuant to D.C. Bar R. XI, § 12.1); In re Hanna, 657 S.E.2d 766, 767 (S.C. 2008)(in attorney 

disciplinary proceedings, the attorney and South Carolina’s Office of Disciplinary Counsel 

sought judicial approval of agreement for discipline by consent).

The Texas Rules of Disciplinary Procedure do not provide procedures for the settlement 

of a disciplinary action nor do the rules require judicial approval of the settlement agreement. 

Consequently, we return to the procedural hierarchy established by the rules. In so doing we 

reiterate what we noted at the outset. The language requiring the judge to determine sanctions 

and enter judgment relates to the procedure for trial on the merits and does not relate to 
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settlement agreements. These procedural specifications neither contemplate nor define the 

discretion of the trial court to reject a Rule 11 agreement. 

We also must emphasize that stare decisis results in predictability in the law, which 

allows people to rationally order their conduct and affairs. Grapevine Excavation, Inc. v. 

Maryland Lloyds, 35 S.W.3d 1, 5 (Tex. 2000). There is evidence in the mandamus record that 

the Commission entered into a similar Rule 11 settlement agreement with Relator’s co-counsel in 

the criminal trial who had also been held in contempt, but a different judge was assigned to hear 

that disciplinary proceeding. In contrast with what happened here, the trial judge in co-counsel’s 

case signed the agreed judgment. Application in disciplinary proceedings of the established rule 

that a trial court has a ministerial duty to enforce a Rule 11 settlement agreement promotes

consistency, fairness, and predictability. 

Because we conclude that the trial court had a ministerial duty to sign the parties’ Rule 11

agreed judgment, we sustain Issues One through three. Having found that Caballero has 

established her entitlement to mandamus relief, we conditionally grant her petition for writ of 

mandamus and order the trial court to vacate the partial summary judgment entered on 

February 13, 2013 and to enter judgment in accordance with the parties’ agreement as to the 

material terms. We are confident the trial court will comply and the writ will issue only if it does 

not.

April 23, 2014

ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, J., and Barajas, C.J. (Senior Judge)

Barajas, C.J. (Senior Judge), sitting by assignment

Rivera, J., dissenting